Con Law Study Set

National Aeronautics and Space Administration v. Nelson

No violation of hypothetical right to privacy for NASA employment background checks • USSC: disclosure stigmatizes; lower ¢s: balance of gov't & personal interest that are fundamental; suggestion right may exist increases litigation; legislative issue; info must be relevant & necessary; have protections to avoid disclosure; reasonable aim to get capable employees o Right to Privacy: assumed but without deciding whether Constitution includes such right; grave doubts right exists o Big Issue: new constitutional issues still exist

Jackson v. Metropolitan Edison Co.

Heavily regulated private electricity corp. turns off black's power but not state action • USSC: state didn't directly act in particular termination b/c state regulation (even creating monopoly) isn't state action o State utility commission authorizes corps. ability to discontinue service to anyone w/ reasonable notice after non-payment o Preliminary Threshold: Burton's ruling effects subsequent decisions o Weak Claim: underlying effect where USSC manipulates reasoning to make correct decision (clear fraud/misrepresentation by π) • 14th equal protection claim (requiring state action) not a 13th claim

US Department of Agriculture v. Moreno

Hippies get RBS; struck down law limiting food stamps only to households of related individuals • Rationally Related: over/under inclusive thus errors in both directions (excludes related hippies, includes scheming families) • Legitimate Interest: oddly references legislative history that alleges to prevent hippies for disdain of lifestyle; "a bare desire to harm a politically unpopular group isn't a legitimate governmental interest" o Usually actual purpose irrelevant, just finds any retrospective "conceivable" reason like saving money

Board of Curators of University of Missouri v. Hororwitz

Medical school dismissal procedure offered at least enough DP for alleged infringement of property/liberty • USSC: unnecessary to indulge in further discussion of due process required in educational context; "informal give-take" all that is required o Goss: very little precedent, relies on high school temporary suspensions; actually more protection than at medical school level o Faculty gave probationary status for following year, file reviewed next year, given chance to spend time w/ independent physicians who confirmed dismissal, notified again, appeal to provost who sustained (based on poor performance/hygiene/demeanor)

Buck v. Bell

Notoriously upheld eugenics law to sterilize infirmed women to prevent proliferation of imbeciles & improve society • USSC: gov't interest to better society (prevent spread of morons) justifies law; "3 generations of imbeciles are enough" o Staged: like Plessy; eugenics legislatures fraudulently selected Buck & her attorney to validate movement towards Darwinism • J. Butler (dissent w/o opinion): chided by O.W. Holmes for Catholic bias (distinction btw courageous/cowardly judge) o Unofficially Overturned: still precedent but w/ turn of WWII Nazi's movement & law became disfavored; allows arbitrary & unwarranted determinations (Buck not necessarily infirmed) that take away fundamental liberties

Andrew Jackson's message accompanying his veto of legislation renewing the charter of the Bank of the US

- Supreme court should have too much power

Shelley v. Kraemer

private subdivision covenant to exclude blacks void • USSC: judicial enforcement via state ¢ enforcing private restriction is state action thus covenant void per 14th + Civil Rights Cases o Distinction: 2 parties agree to K but 3rd party intermeddles to void K, more theoretical approach to State Action (less factually based) o Recused: 3 justices took no part in consideration, had property w/ similar restrictions (common)

The Civil Rights Cases

- 14th and only apply to gov't action not the acts of individuals - Struck down the civil rights act

McCulloch v. Maryland (1819)

- Analyzing state action = Does it violate the Constitution? - Analyzing federal action = 2 steps 1) What authority does the federal government have? 2) Does it violate the constitution? - Lays ground work for expanding federal authority

Ex parte McCardle- Jurisdiction Stripping

- McCardle, a newspaper editor arrested for writing articles critical of Reconstruction, petitioned the Supreme Court of the United States (United States) for a writ of habeas corpus. McCardle argued the Military Reconstruction Act (the Act) and his prosecution were unconstitutional. - Rule of Law: Congress, by repealing the United State Supreme Court's (Supreme Court) appellate review of writs of habeas corpus, effectively took jurisdiction over McCardle's case away from the Supreme Court. (Jx Stripping only precedent) - Discussion: This case is really about the extent to which Congress can restrict access to appellate review by the Supreme Court. It is worth noting that Congress did not remove all channels of obtaining Supreme Court review when it repealed the Act of 1867. Another politically-charged case, Congress repealed jurisdiction out of a fear that the Supreme Court would rule adversely on the constitutionality of the Military Reconstruction Act. However, the Supreme Court notes that it is "not at liberty to inquire into the motives of the legislature," but only the constitutional authority to divest jurisdiction is examinable by the Supreme Court

Dred Scott v. Sandford (1857)- Slavery legal in federal territory

- Rule of Law: The Missouri Compromise is unconstitutional and slaves are property not citizens. - Held: No. The original framers of the United States Constitution (Constitution) were clear in their words and actions. "All men" included the dominant race and not the Africans who were imported as slaves. They are still property as they were originally. - Discussion: The Supreme Court of the United States (Supreme Court) simply did not recognize slaves as people and did not agree that indentured servitude needed to be eliminated.

Barron v. Baltimore (1833)- Building effected my wharf

- Supreme Court has no jurisdiction over state cases - Rule of Law: Case dismissed for lack of jurisdiction since there is no repugnancy between the state's actions and the Constitution. However, the Supreme Court of the United States also held that the Fifth Amendment is not applicable to the states. The Court reasoned that had the framers of the Bill of Rights intended them to be limitations on the powers of the state governments, they would have expressed that intention. - Discussion: Marshall's Court looks to the framer's intent to find that the Bill of Rights applies only to the national government, thereby forcing states to adopt individual constitutions to protect individual rights.

Fletcher v. Peck (1810)

- The state/gov't isn't exempt - Can't retroactively cancel contract

Gibbons v. Ogden (1824)- NY Steamboats v. Fed steamboats

- US has the power to regulate interstate commerce

"Harry Blackmun has Second Thoughts and the Supreme Court Overrules National League of Cities

10th struck down federal amendment to force states to pay employees overtime & minimum wages • Fair Labor Standards Act: federal gov'ts must pay employees minimum wage & pay 1.5 overtime, amended to include state gov't employees • USSC (Rehnquist): major but short lived reinvigoration of 10th; violation of federal balance (interference w/ integral state functions) o Traditional Functions: state gov't special exemption from federal regulation; flexibility to pay unique positions (too costly: forced to hire & train new workers to avoid penalty or burden costs of increased pay under act) o Partisan: 5 conservatives v. 4 liberals; preference based upon what is best suited for own interest (perpetuated from political timing) o J. Blackmun: concurred w/ reservations then flipped; lower ¢s struggle to distinguish what is traditional (existence v. analogous: police, fire); should be left to politics (judges shouldn't be imposing decisions based on personal or pragmatic evaluations of laws)

Twining v. New Jersey

5th no self-incrimination not incorporated though 14th DP thus States allowed discretion > incorporated 5th self-incrimination (1964) • USSC: protection against self-incrimination not a fundamental right, 14th DP doesn't stretch this far yet o 14th: DP would think no self-incrimination follows fair trial o J. Harlan "Great Dissenter": "14th Amendment should forbid any state from making or enforcing a law that will abridge privileges or immunities of citizens of the US or deprive any person of life...without due process of law"

Cooper v. Aaron

AR Gov. attempts to prevent USSC Brown desegregation through state legislation that questions USSC authority • USSC: segregation over as legal matter, reliance on Marbury "province/duty of judiciary...to say what law is...binding effect on States" o Art. VI Supremacy Clause: "supreme law of land" thus EP prohibits any JX to deny ruling's implications o Enforcement Mechanism: Eisenhower has Army reinforce showing USSC has no direct authority (indirect effect on opinions)

Massachusetts Board of retirement v. Murgia

Age requires only RBS; upheld questionably irrational law requiring police to retire at age 50 • USSC: gov't employment not fundamental right; age not immutable, no history of discrimination, influential in political process o Rationally Related: physical test requirement; 50+ could be fitter than most; RBS very easy to meet despite clearly inferior legislation o Legitimate Interest: need physically fit people to protect public welfare (Statutory Age Protections [ADEA])

Graham v. Richardson

Alienage requires strict scrutiny; struck down law denying public assistance to lawful resident aliens • USSC: 9-0; "person" includes aliens thus 14th EP; immutable characteristic, discrete & insular group w/ limited voting rights o Narrowly Tailored: requires aliens to be US resident for 15 years & saving funds could be accomplished w/o discrimination o Compelling Interest: preserve funds to ensure welfare benefits for citizens; "concern for fiscal integrity isn't compelling justification" o Alienage Exceptions: Immigration Laws whole reason is to treat class differently • Governmental Functions: limited to citizens due to nature of work or influence on society & children (civic sense & discretionary jobs: teachers, police, public policy, high ranking officials, legislation); doesn't apply to attorneys

Burton v. Wilmington Parking Authority

Black refused service from private business in gov't parking-garage building thus state action • USSC: case-case determination; state sufficiently insinuated w/ business, land/building gov't owned, parking lot benefit (no direct entry) o Gov't indicators & public nature (dedicated to public use) of building would impose idea gov't supports racial discrimination o D argues income derived from parking garage insufficient to be state action; only connection to state is rent paid annually o Dissent: preference to resolve by statute, CRA (1964) prohibits discrimination in public (illegal but not unconstitutional)

Hammer Dagenhart

Congress prima facie limit interstate commerce via commerce power but aims to limit/supress intrastate child labor • Federal Regulation: more Commerce Clause questions in era of more industry (Sherman Anti-Trust, Interstate Commerce Act) • USSC: Congress can't indirectly regulate child labor (infringes on States' rights) under interstate commerce because it doesn't stretch to pre-transfer, becomes question of morality v. economic theory & the scope of commerce power (ruling excludes reach into production phase) o Art. I: Congressional power limited to list...interstate commerce so interpretation depends on scope of power's reach down chain • Commerce: just exchange stage of business & doesn't include mining, manufacturing, production... that precedes commerce • J. Marshall (Gibbons): broad interpretation of commerce as a flow, potentially stretches to production (pre-transfer phase) • Congress can only regulate things that directly & substantially affect interstate commerce • Sufficient Justification: allows regulation if goods are health/morally dangerous (eggs, lottery, alcohol) o 10th: even if thing directly & substantially affects interstate commerce, Congress can't regulate it if reserved to States • If power isn't explicitly reserved to Federal then by default that power is vested in States

Edwin Meese "The Law and the Constitution"

Cooper took USSC's power too far; each branch & citizen has obligation to stand up to incorrect USSC ruling o Constitution & Con. Law: fundamental law v. USSC's interpretation to resolve issues at conflict w/ Constitution • Interpretation: official function of every branch not just USSC o Tradition of Resisting: A. Jackson & National Bank, T. Jefferson & Marbury, A. Lincoln & slavery o Dangerous Precedent: Cooper persists which allows select justices to impose beliefs; but democracy elects justices • Counteract Permanent Appointment: judicial accountability hearings (no), defiance in exceptional circumstances

Roe v. Wade

Creates trimester system (based on ¢ evidence) striking down TX law outlawing abortions except to save life of mother • USSC: difficult to determine which Constitutional provision protects privacy, similar to Griswold but eventually relies on expansion of 14th • Right to Privacy: 7-2, 14th liberty includes/protects a woman's private decision to decide whether or not to terminate pregnancy while dissent says the right isn't mentioned by Constitution so it's a political/legislative decision (none say it forbids abortion [14th includes pre-birth]), "person" references all to post-natal stage thus 14th application to pre-natal not valid o Not Unqualified: balances mother's, state in mother's & state's interest in child; • Regulation: hinges on point where abortion becomes more dangerous & viability such that regulations are upheld if reasonable & narrowly tailored to protect women's health (like strict scrutiny, tilts in favor of allowing abortion), or where state's interest becomes more compelling than mothers' (after viability: meaningful life outside of womb) • Health: includes mental & emotional health (creates loophole via subjectivity) o Doctor Influence: legal abortions only w/ licensed Dr. to promote women's health, central focus, choice "must rest w/ physician" o Case Selection: π went along w/ rape narrative, changed opinion of case after religious-rebirth, failed suit to change decision • Air Force Rape: forced to quit or have abortion, changed policy before USSC (probably a stronger case to alter law) • Lack of Standing: case would be moot but for exception for pregnancy, "capable of repetition but evading review"

Hughes v. Alexandria Scrap Corp.

Dormant commerce clause inapplicable to law w/ incentive for scrap disposal that required more for out-of-staters • Market Participant Exception: gov't acts as participant or in proprietary (buyer/seller) capacity & not as regulator then law can favor its own citizens; ideological split (liberals don't like while conservatives want loopholes in restriction of state power); self-limiting b/c it costs state money • USSC: state paying state tax money for cars to be scrapped thus acting as participant & DCC doesn't apply (only for regulation of commerce) o Interstate Burden: more paperwork to get incentive creates disincentive to use out-of-state; profits drop > 30% from program; effectively cheaper for locals thus discriminatory but not invalid b/c of exception (use tax money to benefit citizens)

Romer v. Evans

EP strikes down Co. constitutional amendment to nullify sex-discrimination protection law • Intrastate-Tension: ordinances prohibit sex-discrimination > attempt to nullify via amendment to State constitution > USSC nullifies attempt • Abstraction of Law based on core viewpoint (singling group out [comparison to other protected groups] v. prohibiting special treatment) • USSC: unnecessary to pick scrutiny level (dissent: moral objection or freedom of association); applies higher scrutiny w/o saying so o 2 Precedents: historical non-right to engage in gay conduct & can't have law led by pure animosity (Moreno) or bare desire to harm o EP: absolute extent of amendment is uneven b/c no rational relation to legitimate state interest (just denial of right)

Loving v. Virginia

EP strikes down Va. law that bars interracial marriage only when white person is involved • Race: differs over time, ratio of white-black > "one-drop rule" w/ Pocahontas descendant exception (era: eugenics & KKK resurgence) • Korematsu: racial classes require most rigid scrutiny; no legitimate purpose aside from discrimination; designed to promote white supremacy (punishes offenders equally but only applies to whites); 14th freedom to marry a vital personal right essential to pursuit of happiness o Moral Fairness: this man loves his wife & would be unfair not to let them marry; • Anti-Policy: interracial more likely to divorce & have discipline problems (confused cause-effect, law perpetuate behavior) o 14th Original Intent: confused due to political climate (advocates downplayed affect on interracial marriage & opponents enhanced) • Brown: intent casts some light but are insufficient to resolve problem

Harper v. Virginia Board of Elections

EP strikes down poll tax • USSC: 6-3, fundamental right thus SS; right to vote on equal terms, each vote must be equal, "wealth is not related to one's ability to participate intelligently in elections"; $ incentive to take decision seriously/intelligently or promote informed voting isn't enough to meet strict scrutiny o Dissent: J. Black desire for explicit law; J. Harlan "Grandson" posits aristocratic republic to slow majority impetus, fear of Lochnerism

Bush v. Gore

EP violation for lack of uniform recounting standard based on intent of voter (not objective, differed by district) • USSC: 5-4, J. Kennedy could have gone either way; split down partisan lines; unpersuasive opinion (heroic to give finality, Gore adheres) o Speed: Nov. 26 (FL Sec. St. declare Bush winner by 537 votes), Dec. 8 (FL orders hand "undervote" recount per Gore suit of usual automatic machine recount under certain %), Dec. 9 (USSC grants stay), Dec. 11 (1 day of oral arguments), Dec. 12 (decision) o Gore: politically slanted request to recount 4 democrat heavy districts (against own interest: broad but limited method better) • Uniform Standard EP Problem: 7-2 though manual recount required uniform standard to deal w/ hanging chads & "undervotes" o Majority: effectively disallows recount (ruling given Dec. 12, date set as FL deadline to guarantee "safe harbor" for dispute resolution o Recount w/ Standard (J. Breyer & Souter): remand to FL to create standard so recount can proceed before Dec. 18 electoral college o Intent of Voter (J. Ginsberg & Stevens): recount should proceed w/o uniform standard

US v. Carolene Products

Fed. Act to regulate interstate commerce of milk compound for public health upheld, example of shift • General Rule: defer to elected officials, don't decide on merit of law, assume legislation knows best & creates law for good reason o π argues 5th Amendment, property taken w/o DP of law, but rational basis applies to economy & social regulations o Regulations aren't unconstitutional unless character precludes assumption its rational & w/in legislators knowledge/experiences, DP & EP • Footnote 4: creates general rule exceptions 1) BoR 2) Protect Political Process 3) Minority Groups • Minorities: political process may not protect small/insular group (bad + broad v. bad + small/insular) o USSC Post-Lochner: limited influence, very deferential to other branches, weak protection of constitutional rights, bad laws may persist, hope votes & democracy balance power in political process (why it's protected) which is assumed to lead to good outcomes

Wicked v. Filburn

Federal fine of farmer's private consumption (extreme excess to feed cattle, etc.) upheld, regulated for price control • Commerce Clause Apex: not confined to interstate, can regulate local or even non-commerce that affect interstate commerce, excess personal production/consumption affects larger economy thus necessary to attain gov'tal end (good economy) o Nothing Immune: slippery slope, aggregate of even trivial individual actions may substantially affect economy thus needs regulation o Democracy: famers voted for Act, but potentially anti-competitive behavior (picks winners-losers) • USSC: 9-0, illustrates move, change Constitution w/o changing language (adaptable v. made up) "but even if the activity be local and thought it may not be regarded as commerce it may still whatever its nature be reached by Congress if it exerts a substantial economic effect" - J. Jackson o Abandon NLRB case-case on economy, USSC gives way to Congress by abandoning strict scrutiny for extreme deference o Gibbons & Swift & Co. v. US (1905): sustaining national power over intrastate activity "commerce among the states is not a technical legal conception but a practical one drawn from the course of business" o US v. E.C. Knight (1895): "little scope to the power of Congress"; Hammer, Schechter, & Carter v. Carter Coal Co. (1918-36): held acts of Congress under the Commerce Clause to be in excess of its power

Schechter Poultry Corp. v. United States

Federal law regulates production phase & delegates regulatory decisions to executive/industry officials • Dramatic attempt to restructure market & Gov't relationship by regulating against "Sick Chicken" for public health & harsh business practices • USSC: law creates "roving commission" to control prices/production under Presidential approval that violates Commerce Clause because company's acts were strictly local (pre-transfer) thus not under scope of Federal for interstate commerce (not even for health concern) o 9-0 on "Black Monday" known for numerous cases being struck down, even FDR's watered-down attempts at regulation unlawful o Art. I Vesting Clause: "all legislative powers herein granted shall be vested in a Congress", disallows delegation, clause dead after this

Gonzales v. Carhart

Federal law that bans partial birth abortions intact D&X technique w/stands undue burden test • Context: rare procedure, late term; reasons: medical, fetal abnormality, unknown pregnancy (choice v. no choice); gruesome procedure • USSC: substantively a better law (federal statute better defines specific procedure [D&X v. D&E); new evidence (debated: lower ¢ finds procedure is never medically necessary b/c other methods are still available D&E or lethal injection + extraction [effect on women's health?); new justices (no O'Connor); federal statute allowed via interstate commerce (doctors, travel) • J. Kennedy: NB poorly written, no difference btw two procedures thus could ambiguously include more procedures that creates undue burden o Dissent: no provision to protect women's health; dislike pro-life language of majority especially coming from Kennedy (could mean he switch to completely pro-life, unborn v. fetus, late term v. 2nd term, abortion doctor v. specialist & unfounded maternal regret) o Pro-Life: opinion divided; like language but ruling is meaningless, rare technique w/ limited application • Super-Legislator: rejects all-or-nothing approach by creating flexible rules much like affirmative action o Roe & Casey: no Constitutional seed or direct match w/ public sentiment; possible attempt to find median sentiment o Gonzales: bans specific procedure for demeaning medical profession in spite of medical implications for woman • Current Status: 5-4 pro-life, uncertainty based on Kennedy's Gonzalez ruling/language o Overruling Roe's Core Principal: just becomes state issue • Legislation: Federal ban like ban of abortion procedure (violation of privacy v. commerce clause rationale) o Justices take 3rd position, unlikely b/c position never taken) o Constitutional Amendment: unlikely via super-majority o Ark. legal challenge (passed law unlikely to be unconstitutional, pick battles)

US National Archives and Records Administration, "A more perfect Union: The Creation of the US Constitution"

Federalists • Dominated in the convention, supported constitution, wanted strong central government. • Included Alexander Hamilton, Jay & Madison - who wrote the federalist papers to rally support in New York after Cato's essays hit the press • Stronger national government (weaker state power), believed in implicit individual rights thus no need for bill of rights Anti-Federalists • Feared abuses of central government (more state authority), wanted bill of rights and amendments to ensure individual rights, fear power would be placed in hands of few (wealth, self serving) • Opposed constitution and attacked it because it: • Lacked a bill of rights • Discriminated against southern states • Didn't like direct taxation • Loss of state sovereignty • Classist • Territory too extensive for one government less organized than federalist movement • Bill of Rights (Written 1789; Ratified 1791) o Main anti-federalist platform; wanted to ensure certain liberties out of fear of tyranny; federalists thought they were implicit and protected by the states o Constitution was only ratified because of a promise of a bill of rights (Hamilton claims) o Many federalists were later converted to believe in the necessity of them

Abraham Lincoln's speech about the Dred Scott decision

Gave speech condemning slavery during bid for Senate seat, laced w/ racism, best way to prevent racial intermixing is abolition

Clinton v. Jones

Hold no Presidential immunity for unofficial acts done before office & no stay/delay allowed • Official v. Unofficial: protection for acts done in official capacity but not unofficial or acts done before becoming President • USSC: 9-0, no precedent or Constitutional text to guide thus balanced policy; burden to Clinton unlikely to be much, time constraints of job not enough to overcome Jones' private interest for justice; actually took tons of time (purgery > obstruction of justice > impeached) o Impeachment: expressly includes bribery & treason but remains unsettled what constitutes "other higher crimes" b/c so few impeachments + removal from office historically (never executive branch; usually just resign) • Proceedings: unsettled whether vote must be public or private (Clinton had public hearing followed by private Senate vote)

Plyler v. Doe

Illegal alien children get RBS despite general rule of no 14th EP; strike down law barring them from public education • Illegal Aliens: don't have EP but have some DP protection; best example of USSC doing whatever they want • USSC: education important but not fundamental right; "w/in its JX" fits w/in 14th EP; innocent children render sympathetic result; confuses RBS & intermediate scrutiny "spins out a theory custom-tailored to the facts...unabashed result-oriented approach" o Rationally Related: "prevailing rule isn't rational unless it furthers some substantial goal of state", illegals said not to come to US for free education (employment) so law will create sub-class of uneducated not desired deterrent effect, wont improve edu. quality, 14th not an "all-encompassing 'equalizer' eradicating every distinction for non-responsible (infirmed...) people" o Legitimate Interest: protect from influx of illegals that burdens economy (underuse public services), costs of supplying education o Limitations: doesn't apply to college; had this been Congressional legislation USSC would have deferred (federalism dimension)

Craig v. Boren

Implies intermediate scrutiny from Reed & strikes down OK law barring males from buying beer at younger age than females • USSC: 7-2, despite not appearing expressly in Reed majority pretends/distorts opinion potentially to stave off criticism for making up law to fit certain outcome; precedent: gender evaluated w/ intermediate scrutiny; senseless discrimination not allowed despite stats of danger o Amicus Curiae: Ginsberg as non-party woman's rights advocate illustrated idea (probably wanted strict scrutiny) o Stats: weary of use because easily manipulated; rational to defer to legislature to figure out indefinite statistical analysis • No substantial relation to important gov't interest of making roads safer & protecting public welfare o Male: more sympathetic; illustrates congruence where 14th EP applies to men & women evenly just like all races • J. Rehnquist: discrimination doesn't apply to males because they have access to political process (could change law) o OK: state created strict scrutiny so potentially not coincidence they also increase scrutiny for gender

The Prize Cases

In April 1861 President Lincoln declared a blockade of southern ports. Pursuant to this blockade in May and July 1861, Union ships seized Confederate merchant vessels and cargoes of foreign neutrals and residents of the southern states. The ships were condemned by federal court order. The owners of the ships and cargo appealed. Rule of Law: It is the Congressional prerogative "to declare war" under Article , Section: 8, Clause 11. However, the President has the ability to take action when attacked.

US v. Virginia

Intermediate scrutiny strikes down male-only admittance policy at state-institution • USSC: 7-1 (Thomas recused, son a student), use intermediate scrutiny but seems heightened (probably because Ginsberg wants strict scrutiny); serving VA's sons w/o provision to serve VA's daughters thus invalid per EP o Ginsberg: clarification or heightens scrutiny; justification for differential treatment must be exceedingly persuasive, burden on state, justification must be genuine not hypothesized or invented post hoc, cannot rely on overbroad generalizations; again USSC seems to distort & pretend to use certain standard while actually doing something else; potentially sets bad precedent for economy • Subsequent Rulings: clarify gender is just intermediate scrutiny o Scalia: supports history, fears destruction of adversary (slight modification okay) history of institution; decision for legislature, don't impose social sentiment; all men institution actually serves societal benefit advancing diversity via good values (found untrue) o VWIL: essentially "separate but equal" but poorly done, changed adversarial method o Anecdote: law preferring ex-military for hiring upheld despite de facto discrimination (98% males) because de jure is of good intent

Korematsu v. US

Japanese-American jailed to protect against espionage/sabotage for fear of WWII West Coast invasion, upheld • USSC: despite f4 minority exception USSC defers during wartime (reluctance to be blamed), blatant discrimination strict scrutiny ignored o Precedent: dangerous/powerful that ¢ defers to President/legislature during emergency (alters ruling, terrorism) o Strict Scrutiny Seed: regulations that curtail civil rights of a single racial group are immediately suspect & must subject them to most rigid scrutiny (not automatically unconstitutional) where pressing public necessity may sometime justify it but never racial antagonism o Suspect Class: law affecting fundamental interests only upheld if necessary to promote compelling state interest • Racism: investigated white foreigners unlike 115k including women/children, stretched motives & exaggerated evidence, but serious yet overblown concern of invasion; lasting effect: prolonged resentment

Please v. Ferguson

LA law prohibiting blacks/whites from riding same train car which is clearly State & Gov't action missing from above • Scripted: anti-segregationists find 7/8 European Homer to challenge law, forced confrontation w/ train company & actors • USSC: uphold law; legislation can't rid society of racial instincts, desegregation "must be result of natural affinities & voluntary assent", ¢ simply not ready to confront/grant complete equality to all races o 14th Equal Protection: "separate but equal" facilities are constitutional; infringes on social equality but not political (14th doesn't protect social equality); Strauder (year): law limiting juries to white males only implies legal/political inferiority o J. Harlan (dissent): separation not a mutually desired thing, based in inferiority to exclude blacks from whites • Progressive Yet Racist: whites as master race & superior; to truly discriminate should also exclude Chinese from train cars

Home Building & Loan Association v. Blaisdell

MN law relieves farmers of debt during economic emergency despite Ks Clause • USSC: despite historical purpose of Ks Clause to prevent relief & enforce debtor-creditor duties, upholds law because economic emergency is analogous to natural disasters (riots, starvation/necessity) & law is limitedly drafted to be temporary (no emergency clause in constitution) o Kills Ks Clause: Gov't can void Ks for good reason (unlimited), no rulings have since used Ks Clause

Cleburne v. Cleburne Living Center

Mental retardation just RBS; strikes down law requiring special use permit for mental institutions • USSC: interspersed in society (race/gender), endangered from public (self-fulfilling dislike limits scrutiny allows greater discrimination), pending legislation (race/gender had CRAs), immutable?; but historic hostile treatment, no political protection (family protection) o Slippery Slope: difficult to diagnose so opens door to mental conditions receiving higher scrutiny (depression...) o Rationally Related: fear, dislike, negative attitudes aren't adequate (Moreno) & dangers like flood aren't rational • Piece by piece legislative attempt to cure issue like Railway Express Agency's ban on ads o Legitimate Interest: protecting society irrelevant because mentally retarded don't legitimately threaten society • Dissent: housing a fundamental right & history of discrimination; majority risks ruining precedent & return to Lochner

Brown v. Board of Education of Topeka

NAACP combined similar equal protection cases to attack Plessy separate but equal facilities • USSC: separate not equal even if tangible aspects are equal via 14th EP o Justices Divided: Chief Justice F. Vinson wanted to decide case as matter of law not policy where precedent should persist o Civil Rights EP: 14th Amendment clearly forbids separate but equal (H. Black, S. Minton, H. Burden, W. Douglas) o F. Frankfurter: civil rights advocate wanted resounding victory, stalled 1 year to push original intent of 14th • Shift: Vinson dies, replaced by liberal Chief Justice E. Warren who was tactical to focus on present & future not blame past • R. Jackson: policy decision not purely legal, reservations about overruling precedent & original intent of 14th o W. Rehnquist: clerk, memo supporting Plessy analogizing Lochner, careful not to rule on personal views thus misread Constitution's original intent, later dismissed pro-segregation when elected to USSC • T. Clark: flexibility & respect for local variation • S. Reed: don't rush implementation & be respectful, pro-segregation, last convinced by E. Warren o 9-0: aid compliance/acceptance of controversial ruling, weak legal reasoning relying on "inconclusive" history & original intent from 14th's drafting (counter intuitive, pro-segregation say 14th eradicates slavery to prevent passing), Plessy based on impossible premise • Social Studies: racial inferiority discerned from separation; argument to exclude (persuasive best evidence of inherent inequality or indicative of weak legal reasoning thus necessary for positive ruling), unease at time about statistics • C. Thomas: EP means just that, shouldn't have relied on sociological studies to decide case

Goldberg v. Kelly

NY gov't taking welfare checks w/o notice & opportunity to be heard violates DP (retrospectively top 10 ruling) • USSC: gov't interest in efficiency (reducing costs) is outweighed by π's property interest in vital entitlement & risk of wrongful taking • Deprivation: entitlement (once met, program of specified criteria requires due process) v. mere expectancy (no due process); welfare not charity but means to promote general welfare; (1960s) societal change from right v. privilege, gov't benefits weren't worthy of due process o Stream of future money (not yet received gets less protection); money already received can't be taken w/o due process • Procedure: unclear whether hearing is before/after deprivation (efficiency v. burden to person deprived)

Lochner v. New York

NY law limits ability to work over 60 hours in bakery that violates liberty of K • Historically: retroactively famous & emblematic of era even though it wasn't headline news, around 200 other like-cases ruled similarly • USSC: 5-4 struck down law under 14th Amendment's liberty of Ks (no explicit clause/amendment, inferred via liberty...DP such that people should be free to pursue freedoms through making own Ks), ruling becomes authority going forward; can't force to work less than limit o R. Peckum: lawyer, well connected, J.P. Morgan, Rockafellor, etc., portrayed as business friendly, potential effect on ruling/stance • Sufficient Justification: no serious health problem particularly to bread (potentially to workers) o O. Holmes (dissent): "14th Amendment doesn't enact...Social Statics...Constitution isn't intended to embody a particular economic theory...paternalism or laissez-faire", vague inference like McCulloch "expounding", USSC doesn't know better than local legislature & shouldn't read own personal beliefs into ruling • Laissez-Faire v. Protectionism: social Darwinism "survival of fittest" tend to oppose regulation & like free-market capitalism

Railway Express Agency v. New York

NYC vehicle ad ban upheld for traffic problems despite bad law or potential EP conflict • USSC: RBS says traffic issues meet weak standard, "it is no requirement of EP that all evils of the same genus be eradicated or none at all" thus equal protection not applied in literal way - allows treating classes of individuals differently o Until proven otherwise assumes rational basis unless in f4, law doesn't have to directly fit potential problem o J. Rutledge: 7-1 dissents w/o writing by acquiescing (like arvendo "neutral", not quite "dubitante")

Planned Parenthood of Southeastern Pennsylvania v. Casey

PA law requiring prohibitive steps to abortion taken piecemeal via more conservative undue burden test • USSC: 5-4 majority upholds core part of Roe; says Roe undervalued gov't interest in unborn life (exists throughout); can discourage abortion more if not too bad (increase thought via informational disclosure) o Compromise: easily could have struck w/ Reagan & Bush appointments, 2/5 new justices vote pro-life • J. Kennedy: backs away from personal pro-life via stare decisis (principled/cowardly: loss of respect, protests [country doesn't get what it wants], precedent, "switch in time..."); no disruption of law/society; Constitution vague enough where personal subconscious creates opinion o Dissent (Scalia): selective stare decisis, core upheld but trimester system replaced (just as much the core) • Undue Burden Test: less like Roe strict-ish scrutiny pre-viability; increases regulation so long as no substantial obstacle pre-viability & same test as Roe post-viability, life/health of woman (still ambiguous enough to include mental health); viability (~24 weeks, change by technology) o Medical Emergency: upheld informed consent + 24 hour waiting period; okay to promote birth over abortion o Spousal Disclosure: struck down signing requirement; right to choose v. to marry; no husband interest, women's nature > money) • Right to Privacy: extra-marital affair may force woman to get unwanted abortion for fear of husband > violence/abuse o Parental Consent: upheld, judicial bypass possible for minor o Reporting Requirement: upheld, interest vital to medical research

Vieth v. Jubelirer

Pa. political gerrymandering claim dismissed & non-justiciable issue is left open until later to find standard of review • USSC: 5-4, no majority indicative that no approach exists on topic; no test exists presently but may be created in time (renders no precedent) o Overrules Davis v. Brandemer Test: discriminatory intent against politically identifiable group + discriminatory effect • Marks Doctrine: when there is no majority agreeing on a rationale for the result the holding of ¢ is position taken by whichever winning opinion decided the case on the narrowest grounds; narrowest determination confused where issue can't be defined in like terms; doesn't go as far to strike down more laws; can lose case but win on issue (hidden sentiment: right to die...); other approaches may come about like getting the most justices to support say a varying level of scrutiny (instead of SS may just get intermediate instead of RBS) o Plurality: prior litigation has no effect (just time/$ wasted); no way to determine test (chides dissent) • Discriminatory Effect: Brandemer successful case for Republican NC judges w/ "pervasive lack of success... likely to go unabated" but just 5 days after decision Republicans won every election; rationale for non-justiciable (unpredictable) o Concurring in the Judgment (J. Kennedy): different reasoning; opinion is likely holding; idealistic that test may exist; no judicial concept of political fairness in districting; keep hope for intervention to maintain confidence in ¢s o J. Souter: prima facie case of 5 elements 1) ID political group 2) deviation from traditional districting principles 3) correlation btw #2 & distribution of #1 4) hypothetical fix 5) Δ intent to pack/crack > burden shifts to Δ to rebut evidence o J. Breyer: unjustified use determination where hold on partisan power purely the result of gerrymandering

Memphis v. Green

RBS upholds city closes street that disconnects white & black neighborhoods to protect children by limiting traffic • USSC: intent to promote safety (legitimate gov't interest), detrimental effect indirect & trivial; don't assume discrimination w/o evidence o Gov't act must directly & intentionally further discriminatory purpose, effect & impact (adverse effect on race or specified class); discrimination must be motivating factor o Circumstantial Evidence: 1st street closing of kind (Yick Wo: larger pattern), no admission of racism, closing the effort of whites, only diverts "undesirable traffic" predominantly black & ignores psychological symbolic message of inconvenience

The Slaughter-House Cases • The two clauses about privileges/immunities o Article IV - The citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states. o 14th Amendment - No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

Reading the Fourteenth Amendment as protecting the "privileges or immunities" conferred by virtue of the federal United States citizenship to all individuals of all states within it, but not those privileges or immunities incident to citizenship of a state.

Jones v. Alfred H. Mayer Co.

Real-estate agent denies blacks chance to buy property in private sale (fear of decreased value, work) • 42 USC 1982: CRA (1866) no discrimination "all citizens have right...to purchase property"; text: broad to include private acts & based on 13th o Worry statute is unconstitutional; claim created under 14th EP to ensure validity but effectually requires state action • D claims private sale thus not state action so 14th doesn't apply & consequently that statute doesn't apply o Strengthen 13th: sec 2. allows reliance & claim based on statute to strengthen suit (backed by Congress' ability to enact any legislation in furtherance of goals in sec. 1) thus only need rational basis • 13th sec. 1 applies to slavery, badges of slavery, vestiges or reminders of slavery (Civil Rights Cases) • Badge of Slavery: anything that impinges on fundamental rights that are essence of civil freedom o Property ownership is fundamental right, denial might force blacks into ghettos a vestige/relic of slavery

Baker v. Carr

Reapportionment (weight of vote) is justiciable, not a political issue where Tn. hasn't undergone reapportionment in 60 years • Political Question Doctrine: dicta from Marbury stating some issues are non-justiciable (war, diplomacy... name indicates not politics [untrue]) o 1) textually demonstrable constitutional commitment of the issue to a coordinate political dept. 2) lack of judicially discoverable & manageable standards for resolution 3) impossibility of deciding w/o an initial policy determination of a kind clearly for nonjudicial discretion 4) impossibility of a ¢'s undertaking independent resolution w/o expressing lack of the respect due coordinate branches of gov't 5) unusual need for unquestioning adherence to a political decision already made 6) potentiality of embarrassment from multifarious pronouncements by various departments on one question • Reapportionment: "weight of vote": resizing districts for population disparities; dense areas' votes count less than rural o Gerrymandering: reason for leaving districts alone despite demographic changes (advantage to incumbents) o Remand: one vote is equal, SS must come as close to 1-1 mathematical equality as possible (here it was 23% difference)

"Racial Gerrymandering" briefly mentioning Gomillion v. Lightfoot, Shaw v. Reno, and Miller v. Johnson

State (not fed.) legislatures draw district lines oddly for political advantage to waste oppositions votes; benefits incumbents (name recognition, job experience, money raising); normal shape still subject to tests; non & bi-partisan commission o Packing/Cracking: overloading votes to devalue or splitting votes to give more value (technology, algorithms); risk going to far o 10 Years: redistricting in accordance w/ census; not constitutionally mandated (TX case redistricting upheld after only 2 years) o Racial: illegal, design to benefit/burden subject to SS; distinction btw racial & political activity difficult (must be motivating factor) o Political: rationale unknown, tied to power in ¢s v. legislature & executive when originally an issue • Democrats want justiciable & Republicans want non-justiciable; just nasty political issue • Delay: must show intent & discriminatory effect (must wait until election ends to have result to compare)

Williamson v. Lee Optical of Oklahoma

Strict scrutiny strikes law requires prescription to refit optical lenses upheld despite apparent inefficiency • USSC: RBS normally used for economic regulation, retrospective/hypothetical reasons for law created to validate law, eye health prescriptions necessary to inform thus protected despite fact law seems to interfere w/ DP by arbitrarily interfering w/ right to do business o "May exact needless wasteful requirement...it's for legislature not ¢s to balance +/-'s" & " law need not be in every respect logically consistent w/ its aims...enough there is an evil at hand for correction and that it might be...rational way to correct it"

Meyer v. Nebraska

Strikes down Neb. law prohibiting teaching of German until child passes 8th grade • USSC: DP guarantees liberty of K, engage in occupation (teaching) & to acquire useful knowledge (parents choice to educate child) o J. Reynolds: German outside of curriculum = unlimited baking (Lochner) + freedom of parents + freedom from religion (anti-foreigners) o Rationale: prohibit foreign influence post-WWI but can't promote desirable end by prohibited means (inadequate reason to restrict) • No foundation that one can protect a child's health by limiting knowledge procurement

Lawrence v. Texas

Strikes down Tx. law that prohibits same-sex sodomy (no rational relation to state interest) • Staged: Plessy; unlikely, temporary relationship, interracial, dispute btw couple gone awry (angry cops & anger of intrusion) o Framing: changed not guilty plea to no contest to challenge law w/o application to specific facts; gay attorney (not part of movement) • USSC: SDP protects right to privacy w/in home (most private place); moral/personal animosity can't rationalize law (only reason it's a crime) o Glucksberg: requires fundamental right (deeply rooted in history & tradition); spin history (lessen importance or state modern trend) o Overrules Bowers: stare decisis is malleable, J. Kennedy hypocritical for reliance in abortion; only a guideline (no predictability) • Slippery slope where invalidation of one law leads to another; reliance on modern trend & international trend (relevant?) o J. O'Connor: promoted striking law by EP; would have limited effect (would allow sodomy prohibition like Bowers)

The Gramm-Rudman-Hollings Act and Bowsher v. Synar"

Strikes down balanced budget act that gave legislative branch power to do executive task (slashing programs) • Comptroller General: subject to Congressional removal thus agent of legislative branch (gives Congress ability to control executive function) • USSC: formalist approach requires branches be as separate as possible (insulate vital office from political pressures); alternatives available (cut budget w/o complexities, amend Constitution); decision only replaced Comptroller General & didn't fix underlying budget problem o Dissent (Functionalist): good way to control budget that was agreed to by branches shouldn't be struck down

"US v. Morrison- The Commerce Power Fails Again"

Strikes down commerce power to add civil remedies to boost enforcement of violence against women laws • USSC (Rehnquist): 5-4, some clarification, non-economic, can't aggregate for substantial effect (anti-Wickard: specific person affect interstate commerce not aggregation of others to affect commerce); existence of legislative findings insufficient (considered but not taken as true) o Violence Against Women Act (Dissent): findings indicate rape's affects on health care, job retention (too attenuated, speculative) o Practically Ineffectual: still enhanced penalties of "hate crimes" by elucidating greater JX nexus in legislation

INS v. Chadha

Strikes down legislative veto function that delegates power to executive branch, requires bicameralism & presentment • Legislative Veto: historically pervasive; efficient means to streamline & oversee/approve legislation during agency expansion; AG grants status to alien via statute then reports to House (no bicameralism) who uses revokes (no presentment) b/c no hardship; agencies create laws • USSC: veto violate separation of powers, groundbreaking b/c so many statutes created w/ partial veto (limited impact b/c Congress still maintained tacit ability to veto agencies actions via budget threats, new legislation, decreased delegation of power, appointed officials) o Formalist: legislative veto function unconstitutional for want of bicameralism & presentment; may efficient but Constitution doesn't allow mixing of branches even if result is disfunction; alternatives exist albeit cumbersome (enact more legislation) o Dissent (Functionalist): requirements not necessary at every stage (passed w/ bicameralism & presentment), works well & agreed to by all branches (resentment of Congressional oversight over time though)

Griswold v. Connecticut

Strikes down widely disregarded old Conn. law banning contraceptive use for married couples • USSC: want to overrule but no Constitutional rationale exists to strike down dumb law (branches of gov't may refuse to defend bad laws) o Penumbra analysis: combine amendments or read between lines to prove existence of non-explicit right, natural rights o J. Douglas: non-conformist liberal; litigation strategy only brought case for married couples (better moral standing: values, left issue to be decided later), clarifies ruling isn't Lochnerism o Right to Privacy: 1st (assemble), 4th "privacy", 9th (explicit recognition fundamental personal rights are protected from gov't), 14th (liberty of association), preamble & enumerations o Lack of Standing: no hypothetical opinions 1) must have real issue 2) w/ something at stake; Planned Parenthood staged violation o USSC Elitism: local attorney argues case (today attorney's offer services to gain notoriety, so usually very professional)

Pierce v. Society of Sisters for he Holy Names of Jesus and Mary

Struck down Ore. law effectively destroying private school by requiring kids 8-16 to attend public school • USSC: unreasonable economic interference (teachers' right to work) & familial interference (parents' right to raise children) o J. Reynolds: no econ purpose; statute enacted to discriminate against Catholics/Parochial schools (influenced by KKK reemergence)

Youngstown Sheet & Tube Co. v. Sawyer

Struck down Truman's bold attempt to take-over steel mills to avoid economic & war concerns • USSC: expedited to USSC, headline news; normally deferential in time of war but Presidential authority is limited o No Congressional authorization thus must be enumerated; commander-in-chief clause only direction of military forces but not to invade private property domestically; Congress previously deliberated issue (gave him alternative power to go to ¢ but not end labor strike via seizure); executive is law enforcer more than law maker (can recommend veto but limited ability to create) o Concurrence (J. Jackson): disfavored attorney's for painting him into corner citing his acts as AG to make him a hypocrite • Maximum Power: act pursuant to Congress; challenger must prove federal gov't lacks that ability • Zone of Twilight: Congressional silence; must rely on independent powers, concurrent power w/ Congress; power depends on events rather than abstract theories of law; can't violate Constitutional principles or existing statutes • (X) Weakest Power: act defying Congress (laws exist to restrict taking of private property); only rely on independent powers minus Congressional Constitutional powers • Politics: Truman wanted favorable optics thus no injunction (appear to blame workers); J. Clark told Truman he could but ruled against him o Truman used alternative set forth by Congress & eventually got steel mills to continue working • Police Action: Korean "War" not technically a war; Congressional acquiescence & tacit surrender of power to executive to pass blame • War Powers Resolution (1973): unenforced & little discussed (thus unsettled) limit to Presidential power to employ armed forces abroad o Consultation: before going to war (vague, need for secrecy [no complaints for mission to kill Bin Laden]); regular/continued (vague) o Time Limit (ss1543-44): report to Congress w/in 48 hours of implementing forces in hostile/foreign territory • 90 Day Window: operation must end w/in 60 days w/o approval; 30 days to complete withdrawl o Commander-in-Chief v. Congressional War Powers: potentially non-justiciable political question thus no standing • "Consistent w/ terms of War Powers...": political necessity to state but not compliance for fear of surrendering power • Loopholes: inapplicable to situation (not hostile, just defensive action, only acting pursuant to international counsel) • Pushback: failed attempt to limit executive branches power to unofficially declare war w/o Congress

Wisconsin v. Constantineau

Struck down Wisc. law barring purchase of alcohol for 1 year by people placed on public posters w/o notice • USSC: public posting didn't give π chance to defend her reputation thus violates DP • Deprivation: liberty: can't buy alcohol at certain locations; property: public posting harms "good name, reputation, honor...notice & opportunity to be heard are essential...stigma, official branding...may be victim" gov't official's caprice

"The Line-Item Veto Act and Clinton v. City of New York"

Struck down act giving President unilateral power to change text of duly enacted statutes b/c of budget concerns • Line Item Veto Act: Presidential power to cancel direct spending order to reduce federal budget deficit (whole bill is law but for partial veto, still allows Congressional opportunity to override); attempts to cure all-or-nothing problem w/ legislation o Approval/Alteration occurs after bill becomes law thus not merely presentment power to create law • USSC: formalistic, not in Constitution (states allowed under own constitutions) o Dissent (Functionalist): J. Scalia switch from prior formalist opinions, just semantics "not a dime's worth of difference btw Congress authorizing President to cancel spending item & Congress giving President discretion to spend money allocated to him" • Current: debt ceiling crisis usually a formality but was used as political capital so Congress created special Congressional committee of 12 to find solution (pending complete Congressional approval) where a failure to find solution would result in sequestration (unknown fix) o Constitutional: delegation of power to group okay (just like any other proposed legislation > requires full approval before a law)

US v. Lopez

Surprising ruling strikes down commerce power to enact federal gun restriction near schools • USSC (Rehnquist): symbolically signals new direction (stops unyielding commerce power expansion); ruling has little practical effect b/c Congress merely alters legislation to accord w/ factors (enforces Constitutional principle to make Congress act in accordance w/ law) o Commerce Power: can regulate use of channels interstate, interstate instrumentalities, activities that substantially affect interstate • Gun Crime > diminished education > poor workers > devalue industries > effect national economy > interstate commerce o No Explicit Rule, Just Factors: doesn't overrule past cases, gun school zone exceeds outer limit of substantial effect test • a) Non economic activity (mere possession of firearm isn't an economic activity [ironic, Δ paid to transfer for gang]) • b) No JX nexus explicitly described by statute (relationship to manufacturing/greater economy) • c) No legislative evidentiary findings (statistical, societal findings [not always taken to be true, just considered]) • d) Traditional area of state concern (education & crime generally state issues w/ intrusion by federal calls of uniformity) • e) Non-infinity (reluctance to concede unlimited commerce power, logical extreme allows regulation of everything) • State Power: eliminates Federalism balance (no powers reserved to states, states have little purpose)

Texas v. White- Was Texas a state when they succeeded?

The Constitution did not permit states to unilaterally secede from the United States, and that the ordinances of secession, and all the acts of the legislatures within seceding states intended to give effect to such ordinances, were "absolutely null"

Marbury v. Madison (1803)

The Supreme Court has the implied power from the United States Constitution (Constitution) to review acts of Congress and to declare them void if they are found to be repugnant to the Constitution.

Palko v. Connecticut

decided double-jeopardy protection by 5th Amendment not incorporated by 14th > incorporated 5th double jeopardy (1969) • USSC: classic articulation of fundamental rights, double-jeopardy not important enough o "so rooted in the traditions & conscience of our people as to be ranked as fundamental"

Goesaert v. Cleary

Under RBS (1/2 options at time) upholds MI law barring women from bartending unless husband/father owns it • USSC: constitution precludes irrational discrimination; RBS easily satisfied by safety/protection rationale, extremely deferential to legislature despite horrible logic & outdated social standards (women in other positions despite evils of drinking, distant male thus no protection) • 1950s Traditional View: encapsulated in culture/TV but "woman's lib" feminism gain steam via "Feminine Mystic" that women want change o Constitutional Amendment: Equal Rights Act (1966) to guarantee equal woman's rights (conservative push confronted w/ liberal opposition trying to give precautions); eventually passes Congress but fails to be ratified by ¾ States after 7 years

Reed v. Reed

Under RBS strikes down Idaho administrator of estate appointment law that arbitrarily favors men over women to save time • USSC: bad & unfair law; but probably rationally serves limiting extra litigation workload of numerous probate hearings to appoint administer o RBS: very easy to meet but arbitrary unfair determination overrides, men have more business experience • Language seems to require more than RBS w/o expressly saying so "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to object of legislation" • History: USSC comes close to qualifying gender as strict scrutiny classification but doesn't eclipse 4 votes; ERA failed & political parties flip

Paul v. Davis

Upheld KY police circulating lists of previously arrested shoplifters (not convicted) to retailers w/o notice • USSC: mere reputation harm w/o further injury to life, liberty or property doesn't require due process (Constantineau: reputation + can't buy) • Deprivation: reputation harm not covered; liberty: can still shop under watchful eye; property: reputation affects ability to get job o Civil Suit: defamation, branded w/ social stigma of shoplifter when π was acquitted

Minnesota v. Clover Leaf Creamery co.

Upheld ban of all plastic milk containers but permitted paper containers (not economic protectionism) • Multiple Provisions: EP & DCC issue; EP, no suspect class or fundamental right thus RBS (easy to pass) • USSC: not facially discriminatory & finds no discriminatory effect/purpose (coincidence); purpose: reduce natural resource waste & help environment o Balancing Test: benefited all paper producers (mostly in-state) & burdened all plastic producers (mostly out-of-state); not invalid simply b/c it causes some businesses to shift from mostly out-of-state supplier to mostly in-state supplier

US v. Nixon

Upheld that special Presidential privilege exists but is qualified thus Nixon forced to disclose damning evidentiary tapes • Federal Prosecutors: executive branch (conflict of interest to prosecute boss) thus need Special Prosecutor (neutral outsider) o No Criminal Charge: unclear if possible against President; too traumatic to accuse leader; let Congress impeach instead o Saturday Night Massacre: attempt to thwart Special Prosecutor's subpoena to get White House tape recordings; two AG's refused to fire special prosecutor then 3rd complied; "in camera" judicial screening of evidence for confidential information • USSC: flexible middle ground decision btw 2 arguments (no express provision granting privilege v. absolute [candid disclosure]); balanced interests of π w/ interest in confidentiality (criminal nature & interest in judiciary system compel disclosure); politically ended Nixon's reign o Enforcement: 8-0 including 3 Nixon appointees (J. Rehnquist recused); Nixon to comply only w/ "definitive ¢ ruling"; attempt to enhance compliance by issuing unanimous decision w/o concurrences (Brown & Cooper: supreme law v. 3 branch duty to decide)

US v. Curtiss- Wright Export Corp.

Upholds Congressional delegation of foreign affairs power to Executive/President to prohibit gun commerce • Delegated Power: Congress gave President authority to ban weapons to foreign countries; all delegation has increased over time (WWII) o Foreign v. Domestic: allows foreign delegation but not domestic (Schechter [1935] delegation running riot) • Traditional: King split sovereignty into 13 states which later expressly gifted/surrendered sovereignty to US (thus 10th) • Total Surrender: view only applies to domestic powers not foreign; states never dealt w/ foreign; historical argument not theory; small express list of foreign powers not meant to limit foreign reach o President: discretion to avoid embarrassment; better informed & better equipped to move quickly

Gonzalez v. Raich

Upholds Controlled Substances Act to regulate illegal & legal drugs to price control • Conflicting Laws: federal & CA, medical use disagreement (Schedule 1); if federal is valid then clearly "Supreme Law of Land" • USSC: "quintessentially economic" fear selling weed (never more than an instant from market); rational to include all weed, hole would persist in law (can't distinguish medical use) o Same Justices but issue creates inherent conflict (less/greater commerce power but more/less drug regulation) o Issue Influence (Kennedy): hypocritical to change decision or more sophisticated view & real distinction (economic activity [crop]) • Necessary & Proper (Scalia): would have struck law just via commerce power but for effectuation of commerce thus valid • Reverse Rationalization: case reveals inconsistency (careful to use intrastate products, personal use only [not aggregate])

Crawford v. Marion Count Election Board

Upholds In. law that requires voters to present photo ID before voting • RBS: gov't interests sufficiently strong to justify burdens associated with ID law; integrity of elections, voter confidence & participation o Gov't Interests: election modernization (technology); voter fraud (albeit distant history of voter fraud) & safeguarding voter confidence (insure gov't is acting w/ integrity & legitimacy which encourages participation (fear vote won't count, doesn't matter) o Requirement excludes absentee votes via mail or from state licensed facilities (nursing homes, etc.); neutral burden to all o Politics: Republicans posit eliminating risk of fraud v. Democratic posit it reduces specific groups' turnout (travel costs to get ID, documents necessary to attain ID & price associated, fraud unlikely (felony), any such law should be phased in & be free of charge)

Abraham Lincoln's Emancipation Proclamation

precursor to 13th Amendment says slaves in states of rebellion towards Union are free (doesn't free slaves) • Paradoxical: no Union control then no slavery; no use freeing slaves in places where it wasn't an issue; black men can serve (200k) • USSC: no ¢ determination; reason why he made limited provision (strategy) so not to raise constitutionality o Debate: unconstitutional but right to violate (who cares, act is for better ends); Commander in Chief's ability through wartime power • Strategy: didn't free slaves for fear such declaration would impede war effort but others thought it would bolster abolition effort o White Northerners wouldn't fight for abolitionism but they would fight for country o Upon Union advancement slaves would likely join forces to aid in abolitionist effort; symbolic end to slavery

Missouri v. Holland

Upholds Migratory Bird Treaty that couldn't pass as constitutional legislation • Treaty Power: can regulate via treaty to expand Federal power; unable to pass legislation thus created treaty w/ Canada to expand power; treaty power may accomplish what congress cannot achieve alone o Pragmatic Decision: essential to help birds/environment/food supply thus use interstate rational to necessitate Federal solution • 10th: reserves powers not expressly delegated to Federal to the states but Treaty power is expressly granted via Art. II • Art. VI: treaties made under US authority in furtherance of Constitution & laws thereof are declared supreme law of land • Valid Treaty: enforced via Art. I necessary & proper to execute powers of gov't • Living Constitution: "we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters... the case before us must be considered in the light of our whole experience and not merely in that of what was said 100 years ago... we must consider what this country has become in deciding what that amendment has reserved"

Cruzan v. Director, Missouri Department of Health

Upholds Mo. clear & convincing standard for ending life-support, almost requires testamentary will • USSC: like NASA right to die is assumed to make ruling on evidentiary standard; even if right to die exists it wouldn't be violated here o Mo. Law: balances State interest in protecting life & abuses of right to die w/ personal interest; erroneous decision can't be reversed • Law based on precedent where personal > monetary interest it requires more evidence o Concurring: legislative issue; worthless life determination is no "better known to 9 picked randomly from KC telephone directory" o Dissent: illustrates USSC supports hidden right to die; false choice exists for patient (no technological advance will remedy status) o Application: no effect on other states, no federal law • Due Process: liberty protects right to refuse unwanted medical treatment; requires competent person; not necessarily right to die

Washington v. Glucksberg

Upholds law that prohibits assisted suicide (law doesn't prohibit all death hastening, just as primary reason) • Facial Challenge to Law: not as applied to real set of facts; broad attack of law to challenge law's application to all circumstances; more stringent burden to meet; financial burden of continued medical costs • USSC: any regulation of liberties must be rationally related to gov't interest; protects integrity of medicine, abuse of right to die & interest in life; rejects idea that Cruzan & Casey protect all personal choices (right to privacy/liberty) o Substantive Due Process: 1) protects only fundamental rights & liberties that are objectively deeply rooted in nation's history & tradition; 2) requires careful description of asserted fundamental liberty interest o Right to Die: historically law punishes suicide; was assault or battery; not fundamental right o Distinction: refusal of unwanted treatment v. affirmative accelerating act/process • Ore. Physician Assisted Suicide: requires medically terminal diagnosis, competent, certain age & resident of Ore. to limit medical tourism o Doctor can only supply, can't administer; illustrates state can give more rights than Constitution requires (federalism: test effect)

West Coast Hotel Co. v. Parrish

WA women's minimum wage upheld effectively ending Liberty of K • Precedent: similar to previous cases that upheld Liberty of K, shift from laissez-faire restrictive view of commerce clause o Movement from direct/indirect effect on commerce to whether legislation's effect was "sufficiently close & substantial" to commerce • ¢ Packing: FDR Fireside Chat, move to replace older ¢ members for outdated thinking (interstate commerce) via retirement o Nothing limits USSC to 9 members thus could appoint more liberals to dilute conservative ¢ o USSC: political & principled dilemma, annoyed by FDR's attack during procedural delay in case, didn't want to appear intimidated but wanted to rule on principle o Myth: "switch in time...saved nine" well entrenched but USSC would have ruled anyways • O. Roberts: swung to uphold from precedential stance of 4 Horsemen & previous annoyance w/ NY attorneys

Brown II

reflection of justices' concerns in attempt to promote long term compliance o Implementation: curious phrase "w/ all deliberate speed" unhurried to avoid error but w/ speed (conflicting) • Logistically difficult but real difficulty rested in resentful sentiment; distinct varying speed from college to lower-levels

Note about the Lugar test from Lugar v. Edmonson Oil Co.

activity that allegedly violates the Constitution can be attributed to Gov't if both elements exist • 1) Constitutional right must be caused by: "character of violation" o a) exercise of some right/privilege created by Gov't, o b) rule imposed by Gov't, or o c) person for whom Gov't is responsible • 2) Person violating right must be: "who is Δ" o a) Gov't official, o b) person who has acted together w/ or obtained significant aid from Gov't officials, or o c) person whose conduct is otherwise chargeable to Gov't • Retrospective Rule: created to include factors of prior cases; malleable, vague & illogical because of attempt to assimilate decisions

Note about the 10th Amendment and US v. Darby Lumber Co

any employee engaged in production for interstate commerce gets minimum wage upheld • USSC: 4 Horsemen retiring, liberal appointments uphold National minimum wage empowering interstate commerce power (anti-Hammer) o 10th: non-explicit powers left to State diminished entirely, "mere truism" could be deleted & wouldn't change anything

Yick Wo v. Hopkins- Chinese Laundry discrimination

law requires permit to continue laundry & 69/70 non-Chinese petitioners are given permit & 0/240 Chinese succeed • 14th Equal Protection: racial discrimination claim success via 14th & claim works for laws that are discriminatory as applied but not necessarily as written; laws may appear impartial/fair but may be applied w/ "evil eye & unequal hand" o Used circumstantial evidence & statistical patterns to show discriminatory application

Alexander Hamilton, The Federalist No. 78 (1788)

o Claimed the judiciary was the least threatening branch because it has neither force, nor will, only judgment. Keeping it separate from executive authority is the only way to secure liberty o In response that it had too much power to overrule Congress, said no act contrary to the constitution can be valid, so courts MUST be intermediary between the people and the legislature to keep the latter within their limits of authority. Power of the people is superior to both. o Judges should be tenured because they are bulwarks of limited constitution and essential to the faithful performance of such

National Labor Relations Board v. Jones & Laughlin Steel Corp

upheld National Labor Relations Act saying employer couldn't fire employee for union activity • Precedent Hammer & Schechter: Federal commerce power didn't cover preceding phases of interstate commerce, restricted commerce power • USSC: expands commerce clause/power to include pre-transfer phases, will proceed on case-case basis, allow greater Congressional flexibility o J. Hughes: "act may be intrastate in character when separately considered, but has such a close & substantial relation to interstate commerce that control is appropriate to protect that commerce from obstructions, Congress cannot be denied the power to exercise that control" o O. Roberts: swung to uphold, effectively expanded commerce to categorical approach of matter of degree depending on effect of law

Ex parte Merryman

Δ detained w/ military tribunal for inhibiting war effort & sentenced to death & is denied writ of habeas corpus • A. Lincoln: North needed troops but had to travel through Union, yet Southern sympathizing, MD so gives military order to suspend habeas corpus (not publically) to limit judicial interference/litigation w/ war effort & containing Rebel interference o President has power to handle military, but necessary to balance national security (war power) w/ DP o Ignores ruling (not USSC though); not better to uphold 1 law to risk overthrow of all laws via war • Emergency: 1) suspend anytime 2) circumstances important to warrant restricting liberty